Ernest G. Beaudry Inc v. Freeman

• Citation: 38 S.E.2d 40
• Decision Date: 25 April 1946
• Docket Number: No. 31174.,31174.
• Parties: ERNEST G. BEAUDRY, Inc. v. FREEMAN et al.
• Court: United States Court of Appeals (Georgia)

38 S.E.2d 40

ERNEST G. BEAUDRY, Inc.

v.FREEMAN et al.

No. 31174.

Court of Appeals of Georgia, Division No. 1.

April 25, 1946.

Syllabus by the Court.

1. It is permissible to amend a petition brought against a corporation by adding the words "incorporated" to get the correct name of the corporation.

2. Under the record of this case the court did not err in allowing The First National Bank to be made a party defendant as executor of the last will and testament of Ernest G. Beaudry, and as trustee of his estate under the provisions of the will.

3. (a) If an administrator or executor commits a tortious act he is not liable individually where the estate represented receives a pecuniary interest. Even then the action is not one ex delicto, but is based on the quasi equitable right of action of money had and received. This is the general rule.

(b) Where an executor is authorized and directed in the testamentary scheme to conduct the business of the deceased as a going business, and in so conducting the business the executor or trustee commits an actionable tort, he is liable in his representative capacity in the same manner and to the same extent as an individual would be liable.

(c) Where, as here, the testator directed his executor and trustee to conduct the business of the testator as a going concern, in the same manner as the testator had conducted it during his lifetime, and directed the executor to promote and organize a corporation and after thus organizing the corporation, to receive all of its shares of stock in exchange for all the assets of the estate, upon the corporation assuming all the liabilities of the testator where the certificates of stock were issued to the corporation, the assets transferred to the corporation and the liabilities assumed in writing by the corporation, the corporation becomes liable for a tortious act committed by the executor in conducting the business as a going concern.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by P. H. Freeman against Ernest G. Beaudry, Inc., and others for personal injuries sustained as the result of being struck by a metal sign blown from premises occupied by named defendant. Judgment overruling a demurrer to plaintiff's amended petition, and named defendant brings error.

Affirmed.

P. H. Freeman, plaintiff in the court below and defendant in error here, whom we shall call the plaintiff, entered suit in the Superior Court of Fulton County, naming as defendants Ernest G. Beaudry, Henry Grady Hotel Company, Inc., trading as Henry Grady Garage, and Asa G. Candler, Inc., whom we shall call the defendant or defendants, as occasions require, Ernest G. Beaudry, Inc., being the only defendant appearing here as plaintiff in error. The suit was dismissed as to Henry Grady Hotel, Inc. The plaintiff sought the recovery of $2,500 in damages for alleged injuries inflicted upon him. It is alleged that the plaintiff on February 6, 1943, between 12 noon and 1 o'clock P.M., was walking on the South side of Harris Street in the City of Atlanta, going East toward Peachtree Street. At this time the defendant maintained the premises adjoining Harris Street, said premises being the corner of Harris and Spring Streets, extending to about the middle of the block along Harris Street toward Peachtree Street. On the premises on Harris Street was a large metal sign containing the words "Henry Grady Garage" said sign being about 6 feet by 12 feet; that the sign was insecurely located on said premises so that it was likely in a high wind to be blown about, and it was not so fastened and held down to prevent its being blown down; that as the defendant approached the sign a high wind was blowing, but the wind was not so high as was unusual for the time and place. As petitioner proceeded walking along Harris Street, the sign was blown from the premises by the wind, and onto Harris Street, and struck petitioner with force and violence, knocking him against an automobile parked along the curve on Harris Street, inflicting injuries upon him, which he describes in his petition. It is alleged that the injuries to the plaintiff were caused by the negligence of the defendants "in maintaining said sign on its premises insecurely and not so fastened down that it would be blown about by a high wind." Thus in substance were the allegations of the plaintiff's original petition. Thereafter he filed an amendment adding several additional paragraphs, the first one being numbered eleven. Paragraph eleven is as follows: "By adding thereto the word 'Incorporated' following the words 'Ernest G. Beaudry' so that the defendant Ernest G. Beaudry will be called by its proper corporate name, to-wit, 'Ernest G. Beaudry, Incorporated, ' said Ernest G. Beaudry, Incorporated having been served in this case and having filed an answer therein."

Paragraphs 12, 13 and 14 of the amendment set out the injuries of the defendant more specifically. Paragraphs 15, 16, and 17 we set out verbatim as follows:

"15. At the time petitioner was struck by said sign on February 6, 1943, it was maintained on the premises owned by Asa G. Candler, Inc., which were rented by Ernest G. Beaudry, an individual, prior to his death on the preceding January 6, 1943, Mr. Beaudry renting and occupying said premises in connection with his automobile business, which business was continued by him until his death and thereafter in the same manner by his executor, the First National Bank of Atlanta, under Item 5 of his will so providing; and said executor was in possession of said premises and maintaining said sign when it struck petitioner. Thereafter, and on March 31, 1943, said business and all its assets were conveyed by said executor to Ernest G. Beaudry, Inc., which corporation was formed on March 27, 1943, and under the direction of Mr. Beaudry's will, all its stock being purchased by said executor; and said corporator assumed in writing on March 31, 1943 the claims of all creditors of said estate, and said business and assets were conveyed to said corporation subject to the indebtedness, present and future, of Mr. Beaudry's estate, same being ratified and confirmed by all the incorporators and by said corporation; and Mr. Beaudry's will so providing.

"16. The premises upon which said sign was maintained have at all times been occupied and controlled in connection with said automobile business carried on by Mr. Beaudry during his lifetime and thereafter by his executor and then and now by said corporation, which succeeded to said business, all its assets and liabilities, said business having at all times continued in the same manner under the trade name 'Ernest G. Beaudry' and there having been no change therein except for the mere change of title resulting from Mr. Beaudry's death and subsequent forming of said corporation.

"17. Petitioner prays that The First National Bank of Atlanta, as executor of the will of Ernest G. Beaudry and as trustee thereunder be made a party to this case, and be served with this amendment, but he prays no judgment against said executor and trustee."

This amendment was allowed by the Superior Court of Fulton County on June 15, 1945. This order reads as follows: "The foregoing amendment is allowed and ordered filed, subject to objection. It appearing that no judgment is sought against the First National Bank of Atlanta, as executor of the will of Ernest G. Beaudry, and as trustee thereunder, said The First National Bank of Atlanta, as executor of the will of Ernest G. Beaudry and as trustee thereun-der, is hereby made a party to this case, subject to objection, and ordered served with this amendment and order. This 15 June, 1945." The First National Bank was duly served on June 14, 1945. We might here revert to the date and character of service of the original petition on the defendant Ernest G. Beaudry, which reads as follows: "Served the defendant Ernest G. Beaudry a corporation, by serving Paul Sheffield, Vice-President and Treasurer, by leaving a copy of the within writ and process with him at the office and place of doing business of said corporation, in Fulton County, Georgia. This October 18, 1943." We also call attention to an answer filed by the defendant Ernest G. Beaudry, Inc., on the 12th day of January, 1944, as follows:

"Comes now Ernest G. Beaudry, Inc., one of the defendants named in the petition of file in the above styled case, and for answer says:

"1. Answering the allegations of paragraph 1 of the complaint, it is admitted that Ernest G. Beaudry, Inc., is named as a defendant in the above stated case, and that Henry Grady Hotel Company, Inc., trading as Henry Grady Garage, and Asa G. Candler, Inc., are named as defendants in said suit.

"2. The allegations of paragraph 2 of the complaint are admitted.

"3. The allegations of paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the complaint are denied." (It being recalled that the original petition consisted of only 10 paragraphs.)

Thereafter, on the 20th day of January, 1945, after the allowance of the amendment to the petition as hereinabove mentioned, Ernest G. Beaudry, Inc., demurred to the petition as amended on July 15, 1945, and for grounds of demurrer said:

"1. Demurring specially to paragraph 11 of the amended complaint this named defendant states: that in paragraph 4 of original complaint the date of accident for which damages are sued for took place on February 6, 1943; that in paragraph 15 of amendment it is alleged petitioner was struck by a sign on February 6, 1943, that said sign was maintained on the premises owned by Asa G. Candler, Inc., which was rented by Ernest G. Beaudry, an individual, prior to his death on January 6, 1943, Beaudry renting and occupying said premises in connection with his automobile business, which business was continued by him until his death on January 6th, 1943, and thereafter in the same manner by his executor, The First National Bank of Atlanta, under Item 5 of Beaudry's will so...